Accident and Safety ExpertPlaintiff sued Defendant for negligence after they were involved in a car accident in Colorado. A jury found that the Defendant was not negligent, and the district court entered judgment in his favor.

On appeal to the U.S. Court Of Appeals for the Tenth Circuit, Circuit Judge Carlos F. Lucero wrote in his opinion that under the Tenth Circuit Court’s rules, it was the appellant’s duty to file an appendix that serves as the record on appeal. Rule 30.1(B)(1) states that the appellant’s appendix must be “sufficient for considering and deciding the issues on appeal.”

Citing Milligan-Hitt v. Board of Trustees, 523 F.3d 1219 (2008), Judge Lucero explained that if the appendix and its supplements were not sufficient to decide an issue, the appellate court had no obligation to go further and examine documents that should have been included. The Court regularly refused to hear claims predicated on record evidence not in the appendix, he wrote.

Plaintiff asserted that the district court erred in admitting the testimony of an accident and safety expert witness. The appendix contained Plaintiff’s motion to exclude the expert’s testimony, but it didn’t contain any response or reply. The original appendix did not include the transcript of the district court’s hearing on Plaintiff’s motion, during which the district court gave its reasons for denying the motion. The judge noted that Tenth Circuit Rule 10.3(C)(3) requires a record on appeal to contain transcripts. However, Plaintiff subsequently submitted that transcript to the Tenth Circuit with a motion for leave to file a supplemental appendix. The Tenth Circuit granted the motion to file the supplemental appendix, but Judge Lucero said that it addressed only a small part of the problem.

The judge noted that the appendix presented a supplement to the motion—but no response or reply. These filings, he said, were required to be included in a record on appeal. Omitting them left the Court unable to evaluate the arguments made before the district court.

The appendix also omitted the transcript of the expert’s trial testimony. It was unknown if Plaintiff preserved any objections. The judge mentioned that the appendix did have documents that appeared to relate to the accident and safety expert, but they weren’t presented in any identifying way. They weren’t file-stamped, and it wasn’t clear how or when they were presented to the district court. Tenth Circuit Rule 30.1(D)(2) states that “Documents in the appendix should show the district court’s electronic stamp.” Based on this investigation, the appendix didn’t permit an adequate review of the decision to admit the defense expert’s testimony.

Plaintiff challenged the exclusion of his two expert witnesses, and the appendix contained copies of Defendant’s motion to strike or limit their testimony and copies of the response and the reply. However, the appendix didn’t include any of the exhibits supporting the motion and the reply.

Also, as with the defense expert, the appendix included materials that might have related to these experts—but the judge said that without any indication of how or when they were presented to the district court. Thus, the appendix was inadequate to review the district court’s decision to exclude Plaintiff’s expert witnesses.

“[A]n appellant who provides an inadequate record does so at his peril,” Judge Lucero, quoting Burnett v. Southwestern, 555 F.3d 906 (10th Cir. 2009), at 908. The appendix before the Court was so inadequate that it wouldn’t overlook or remedy its deficiencies.

As a result, Plaintiff’s motion for leave to file a supplemental appendix was granted, and the judgment of the district court was affirmed.

 

Arrington v. Chavez, 2016 U.S. App. LEXIS 7861 (April 29, 2016)